Institutional and Organizational Antecedents of Title Fraud in Ontario

The Perfect Storm: Institutional and Organizational Antecedents of Title Fraud in Ontario by Nathan Innocente A thesis submitted in conformity with the requirements for the degree of Doctor of Philosophy Department of Sociology University of Toronto © Copyright by Nathan Innocente 2017 The Perfect Storm: Institutional and Organizational Antecedents of Title Fraud in Ontario Nathan Innocente Doctor of Philosophy Department of Sociology University of Toronto 2017 Abstract This dissertation contributes to organizational analyses of crime through the study of real estate title fraud. Through interviews with key constituents in the field of real estate conveyancing and lending, and through an analysis of documents produced by these constituents, this study elucidates both the antecedent institutional and organizational conditions giving rise to new opportunities for title fraud and the legal and governmental responses to this crime. Structured through three discrete papers, the data highlight the role of institutional change in the creation of new fraud risks and the ways in which these risks are conceptualized and mitigated. The first paper explores the conflict over professional jurisdiction between the Ontario real estate bar and title insurance companies. It elucidates the institutional shifts in the field of conveyancing and lending that open the legal profession to competition, and it explores the rhetorical strategies used by the real estate bar to adapt to the diffusion of prevailing practices that threaten their legitimacy. The second paper builds from and advances the explication of these field-level changes, demonstrating how institutional changes have eroded organizational guardianship by establishing anonymous systems that create new opportunities for fraud incubated in routine patterns of conveyancing activity. The third paper situates the government’s response to fraud ii within the context of these field-level shifts. The violation of sacrosanct institutions of private property and homeownership undermines cultural ideologies of the home and imbues the acquisition of property with uncertainty. The significant public and political attention generated by title fraud compelled immediate and atypical state intervention in the rectification of harm and the restoration of title to victims. Altogether, these three papers elucidate the role of the institutional environment in creating opportunities for crime through the incubation of fraud risks, and for compelling atypical state responses to forms of identity crime like title fraud. iii Acknowledgments I am indebted to many in completing this work. Foremost to my committee – Sandy Welsh, Ronit Dinovitzer, and Kelly Hannah-Moffat - for their encouragement, rigour, and clarity. I benefitted immensely from their guidance and wisdom. I also acknowledge the late Richard Ericson, under whose brief but invaluable direction and support this project was initially conceived. I would like to thank the many people and organizations contributing to this research. I hope that I have been able to convey accurately all that you have bestowed. Finally, I am indebted to my family for their patience, perseverance, and support. Mostly patience. iv Table of Contents Abstract ii Acknowledgements iv List of Tables vii List of Figures viii List of Appendices ix Introduction 1 Methodology 7 References for Introduction 15 Bench Warmers or Quarterbacks: Real Estate Lawyers and Legitimacy in the Age of Title Insurance 19 The Institutional Context for Professional Competition 22 Institutional Context and the Legal Profession 22 Logics and Legitimacy 28 Rhetorical Strategies 31 Findings 33 Conversion to Land Titles 34 Title Insurance and the “Strange Dynamic” 36 Growing Rationalization 42 Emerging Relationships with Lenders 48 System Risks 52 Legal Monopolies 56 Legitimacy and Value 59 Conclusion 67 References for Benchwarmers or Quarterbacks 76 Field of Schemes: Advancing Organizational Explanations for Crime and Opportunity 84 Real Estate Fraud in Ontario 86 The Situated Nature of Fraud Risks 95 Findings 104 Situating Fraud 107 Institutional and Field-Level Transformations 108 v Competition and Pricing Efficiencies 111 Moral Hazard 122 Fraud and the Impersonal System 125 Conclusion 132 References for Field of Schemes 140 Cheated out of House and Home: State Legitimacy, Certainty, and Identity Crime Responses 149 Identity Theft and Title Fraud 154 Identity Theft and Fraud 154 Title Fraud 158 Property and Homeownership 162 The Active State 166 Fraud, Law, and State Responses 169 Title Fraud Litigation and Indefeasibility 169 Lawrence and the State 175 Media, Politics, and the Real Estate Fraud Action Plan 180 Conclusion 188 References for Cheated out of House and Home 194 Conclusion: The Case for Expanding Organizational Approaches for the Study of Crime 203 Appendix A: Document List 208 Appendix B: Interview Guides 235 vi List of Tables Table 1: Interview Sample 10 Table 2: Document Sample 11 Table 3: Prominent Real Estate Fraud Cases and Indefeasibility Outcomes 173 vii List of Figures Figure 1: Stages of Institutional Change 24 Figure 2: Timeline for Key Events in the Conveyancing Field 33 Figure 3: Distribution of Claims by Area of Practice 90 Figure 4: Real Estate Claims by Cost 91 Figure 5: Real Estate Clams by Type of Error 91 Figure 6: Self-reported Identity Crime Victimization by Year 94 Figure 7: Key Features by Levels of Analysis 106 Figure 8: Logic Model for an Organizational Analysis of Title Fraud 107 Figure 9: Homeownership Rates for All Households, Canada, 1971 to 2006 164 viii List of Appendices Appendix A: Document List 208 Appendix B: Interview Guides 236 ix Introduction Susan Lawrence, a 55-year-old Toronto widow, discovered that the home she had been living in for thirty years had been sold without her knowledge or consent. In October of 2005, identity thieves posing as Lawrence retained a lawyer and, using identity fraud and forgery, sold the home to an accomplice who had arranged a mortgage on the property. The identity thieves fled with the money and Lawrence, now owing $300,000 to a bank, faced eviction from her home. The eviction was later reversed and through litigation Lawrence was able to restore title to her home. However, the courts also ruled that the bank’s interest was valid and that Lawrence was responsible for the fraudulently acquired mortgage. The Lawrence case, and the many similar cases of title fraud that preceded and followed it, attracted significant media, professional, and public attention for both the insidiousness of the crime and the iniquities of available redress, and further instigated significant and long-term industry and state responses. Bob Aaron, a lawyer and expert in real estate writing for the Toronto Star, observed. “Looking back on 2006, there can be no doubt that the real estate story of the year was title fraud. No other issue in this field seemed to fascinate and horrify the public as the victims' plight.” (Aaron 2006, emphasis added). Indeed, Curt Novy, mortgage analyst for the U.S. Federal Bureau of Investigation observes of title fraud, “It’s the most egregious form of identity theft…It amounts to the most money lost, and is the most devastating to individuals.” (Kolen 2013). Title fraud occurs when fraudsters, using identity theft, assume the identity of the legitimate homeowner and take advantage of automated financial and real estate record systems to fraudulently sell or refinance a property (Criminal Intelligence Services Canada 2007). A lucrative undertaking, criminals engaging in title fraud can net several hundred thousand dollars in less than a week’s illicit work (McWaters and Ford 2007), and the problem continues to 1 2 escalate in Ontario (CIMBL 2001; First Canadian Title 2005; LawPRO 2004). Significant industry and state efforts were mounted to combat the rise of mortgage and title fraud, yet despite these efforts it has become more prevalent and sophisticated (Potts and Selznick 2004), and the costs to insurers and, ultimately, the public has continued to escalate (Strom 2004; Wishart 2008). While title fraud received significant attention from media, government, and professional and occupational constituents, scholars have been ambivalent towards these crimes and existing explanations therefore remain underdeveloped. Where title fraud is discussed, it is often relegated to the analysis of real estate fraud jurisprudence (cf. Bucknall 2008), or is conflated with research on identity theft, identity fraud, and mortgage fraud (Carswell and Bachtel 2009; Criminal Intelligence Services Canada 2007; Morris 2007). The industry literature provides the most comprehensive overview of the title fraud problem. Much of it concentrates on professional prudence in the form of greater regulation, diligence, and audit, and consumer protection through self-discipline, vigilance, and insurance. However, a subset of this literature grapples with the importance of key organizational and process-level antecedents for explaining fraud. Title fraud is a story about institutional change and the risks and responses it produces. Discretely and respectively, the papers herein examine the influence of institutional and organizational change on professional conflict between a comparatively subaltern segment of the legal profession and American title insurance companies, how these antecedent organizational shifts incubate the risk of fraud in routine patterns of conveyancing and lending activity, and how the state, confronted with the reputational

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